Hate Crimes & Hate Speech Bill Fraught with Problems!

by Daniela Ellerbeck
11 November 2016

by Adv Nadene BadenhorstLegal Counsel, FOR SA

The Department of Justice & Constitutional Development recently released the long-awaited and very controversial Prevention and Combating of Hate Crimes & Hate Speech Bill. (The Bill is available for download at https://www.justice.gov.za/legislation/invitations/invites.htm).

In essence, the Bill creates two new criminal offences in South African law, namely “hate crimes” and “hate speech”. In terms of the Bill, the penalty for “hate speech” is a fine or 3 years’ jail time for a first offence, and 10 years for a repeated offence.

Without going into too much detail at this point (a further article dealing with the Bill in greater detail, will be published shortly), the Bill is hugely problematic for various reason .

The timeline is unfair and unreasonable

Firstly, the timeline that has been given to the public to comment on the Report, is completely unfair and unreasonable. After government has taken a number of years to draft the Bill, the public has been given 5 weeks only (until 1 December 2016) to comment thereon!

The Department has advised that once comments have been received, “focus-group meetings consisting of community based organisations in certain provinces (KZN, WC, Limpopo or as identified by the Ministry)” (note, not public meetings and not in all provinces, despite the national and direct impact of this Bill on each and every citizen in SA!) will be held over the December / January period (note, when everyone is winding down or on Christmas holiday!). Thereafter, in March 2017, the Bill will serve before Cabinet, and shortly thereafter be introduced to Parliament. 

The Bill is over-broad and unconstitutional

While we appreciate the intention of the Bill (to protect vulnerable persons and groups in South Africa), our concern is that the definition of “hate speech” is over-broad and will have a major chilling effect on free speech and religious freedom. As such, the Bill in its current form is unconstitutional, and possibly also unnecessary.

Why over-broad? Because the definition of “hate speech” in the Bill goes much further than the definition and limits of “hate speech” in the Constitution, and criminalises just about any communication (in the broadest sense of the word) that any person or group may potentially not like, disagree with or find offensive. The definition contains a large subjective element (focusing on the feelings and perception of the listener or potential victim), and does not necessarily require an actual victim (which, again, is defined very broadly as including a person, a group of persons or even a business or organisation).

Why a chilling effect? Because when certain speech is criminalised, no one would dare open their mouths for fear that someone might take offence and report them to the authorities. Debate on issues such as what is morally right and wrong, what is just and unjust, would be shut down and the very freedoms we cherish as South Africans, namely free speech and freedom of religion, would be reined in.  As such, hate speech laws are actually very illiberal, but potentially also very dangerous. In the words of former US federal judge Michael McConnell, “Speech is constitutionally protected – not because we doubt the speech [may] inflict harm, but because we fear censorship more”. Thus, while it is true that people may ‘misuse’ their right to free speech and even use it to offend, this is a risk that open and democratic societies must take. After all, our Constitution guarantees the right to free speech, not the right not to be offended!

In particular, should the Bill be passed in its current form, believers (from across different faiths) will potentially be muzzled from preaching, teaching or speaking ‘controversial’ Scriptures and issues like abortion, creationism, euthanasia, prostitution, sexual immorality etc, for fear that they will become a target of liberal activists who will no doubt use the Bill to push their own agenda and silence, in their opinion, ‘extremist, fundamentalist, narrow-minded and bigoted’ views.

This week, French politician Christine Boutin was convicted of “hate speech” by the Court of Appeals in Paris for having called homosexuality an “abomination” (as does the Bible in for e.g. Leviticus 18:22). Although Boutin was very careful in the interview to explain that, as a Christian, she does not condemn any homosexual person but rather, the act of homosexuality, the Court did not agree and ordered a fine of 5,000 euro, as well as 2,000 euro in damages to be paid to three gay associations (i.e. approximately R105,000 in total). (See link to article her – https://www.lifesitenews.com/news/french-court-fines-politician-for-using-word-from-bible-to-describe-homosex)

In South Africa also, pastors are already being charged with “hate speech” for believing, preaching and teaching, the Bible. For example, in the case of Creare Training Centre (a school that trains and equips students for Christian ministry), the then Deputy Minister of Justice laid a complaint against Creare with the South African Human Rights Commission (SAHRC), accusing Creare of promoting violence against homosexual people.  In this case, the SAHRC found that while Creare’s view of homosexuality was a Biblical one, it was unacceptable and a violation of human rights. The SAHRC directed Creare to undergo Sensitisation Training.

In addition to violating the constitutional rights of free speech and religious freedom, the “hate speech” provisions in the Bill are possibly also unnecessary. Why? Because the Constitution already prohibits “the advocacy of hatred”, as does the Equality Act. Likewise, the criminal law already provides for the offence of “crimen injuria”, which is the very offence in terms of which Penny Sparrow was recently convicted for referring to black South Africans as “monkeys”. In that case, the Equality Court ordered to pay a fine of R150,000 to the Oliver and Adelaide Tambo Trust to atone for her comments. It is thus clear that there are already laws against “hate speech” in South Africa, and that there arguably is no need for additional legislation in this regard.


We appeal to all churches, religious institutions and as many individuals as possible, to write to the Minister of Justice as a matter of urgency, and object to the unfair and unreasonable process and timeline given for comments on the Bill. Letters of objection can be sent to the Deputy Minister of Justice John Jeffery, at the following e-mail address: [email protected] and cc’d to [email protected]. (To ensure anther record of your correspondence, you are welcome to also copy FOR SA into the e-mail, at [email protected]).

As an organisation, Freedom of Religion South Africa (FOR SA) is committed to protecting our religious freedom, including the right of all Christians to believe and say what it is they believe (whether in the pulpit, in private or in public, including on social media), without fear of harassment or punishment by the State. As such, we ourselves will request the Department for an extension of the deadline for comments, because this is too important an issue for South Africans not to have a full and proper opportunity to say their say! After all, our very freedom to keep on speaking, is at stake here!

FOR SA will also be making full legal submissions on the Bill, pointing out to the Department of Justice (and if it goes as far, to Parliament) why the Bill is problematic and recommending that the Bill be amended so as to remove the current threat to religious freedom (for e.g. by limiting the definition of “hate speech”, and/or including a religious exemption clause).

For more information about the Bill and to stay informed of developments in this regard, please visit FOR SA’s website at www.forsa.org.za (where you can also join the organisation at no cost, and/or sign up to our Newsletter) and also follow us on Facebook at “Freedom of Religion SA”. As a non-profit organisation, we are entirely dependent upon God’s grace for finances. Your generosity will help make a significant difference as we work to fullfil our mission to keep the doors open for the Gospel by advocating for religious freedom. To make a once-off or recurring donation via PayFast or EFT, visit https://forsa.org.za/donate/. We appreciate every gift, big or small!


Having obtained a BA LLB degree from the University of Stellenbosch, Nadene was awarded a scholarship to study a LL M degree in International Human Rights Law at the University of Essex, United Kingdom which she obtained cum laude.



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